Everything you need to know about Family Trusts: Part 1

Dinesh Munasinha

Dinesh Munasinha

Online Legal Information Editor at Family Law Express
Dinesh is a lawyer with overseas experience currently completing the bridging course to be recognized as a lawyer in Australia. He has experience in successfully assisting individual as well as corporate clients in many areas of law. His strength is the ability to simplify complex legal issues, communicate effectively and find practical legal solutions for his clients.
Dinesh Munasinha

Everything-You-Need-To-Know-About-Family-TrustsThe notion of having a Family Trust is viewed by many as too complicated, prone to high risk, a facilitator of family disputes and with little to ultimately gain in financial terms.

There have also been a number of high profile cases in the public domain of Family Trusts that have not been set up or managed properly, at times leading to significant tax penalties and family disputes for those involved.

However, it need not be that way.

For those who set a Family Trust properly , it is considered one of the best legal tools to help better distribute the wealth of the family and make substantial tax savings at the same time.

And in times of separation, family disunity or conflicts, a Family Trust can also play a vital role in the protection of assets.

In Part 1 of this Article we will try to understand what a family trust is and its advantages.

In Part 2 we will look at the tool box required to set up a family trust and the possible pitfalls to avoid.

PART 1

What is a Family Trust?

A family trust could be loosely understood as a mechanism used to collect money and assets for the benefit of the family members. Hence, the assets in the family trust may it be cash or property, is not held in any individual names of family members but are held in the trust.

A Family Trust is also a variant of a “discretionary trust”, which means the trustees have the right to distribute the trust property in a manner they deem fit.1

There is some terminology jargon used in the law of trusts which is worth understanding at the outset;

TRUST DEED: A trust is created by drawing a “Trust Deed”. The Trust deed states the terms and conditions under which a family trust is established and maintained.

Importantly this deed sets out the powers of the Trutees as well. This is usually drafted by a lawyer after discussing the purpose of the trust with their clients.

The trust is established by the trust’s “Settlor” and “Trustee” (or trustees) signing the trust deed, and the settlor giving the trust property (the “settled sum”) to the trustee.

SETTLOR: The “Settlor’s” function is to give the assets to the trustee to hold for the benefit of the trust’s beneficiaries on the terms and conditions set out in the trust deed. The settlor executes the trust deed and then, generally, has no further involvement in the trust.

TRUSTEE: The “Trustee” is responsible for the trust and its assets. The trustee has broad powers to conduct the trust, and manage its assets but limited to the terms and conditions stipulated in the trust deed.

In a family trust, the trustees are usually the parents (or a company of which either both or one of the parents is a major shareholders and/or director). Their children and any other dependants are usually listed as beneficiaries.

How Does a Trust Become Recognised as a Family Trust for the Purpose of Tax Law?

To be treated as a family trust for tax purposes, the trustees have to complete a ‘Family Trust Election’ (FTE) and limit the beneficiaries to eligible family members. The FTE must nominate a ‘test individual’ who is to benefit from the trust and specify an income year in which the trust is to start.

The test individual will usually Settlor and the family group can include:

i.            Any parent, grandparent, brother, sister, nephew, niece or child of the test individual or the test individual’s spouse; and

ii.            A range of other family members, as defined in section 272-95 of Schedule 2 F of the Income Tax Assessment Act  1936. 2

In addition to making an FTE, specific provisions need to be included in the trust deed that provides the trustees with their discretionary powers and ensure the beneficiaries do not have a fixed entitlement to income and capital from the trust.

What are the Advantages of a Family Trust?

The more obvious advantage accountants and financial advisers emphasise are its tax advantages. Whilst this is very important, one should not lose sight of the other advantages of easier distribution of wealth. In this section I will discuss both these aspects.

  • A family trust could help the family to distribute their income in a manner which ensures that the tax liability of the family as a whole are reduced.
  • It could act as a device to plan the distribution of the estate at death.
  • It can also assist in protecting the family group’s assets from the liabilities of one or more of the family members (for instance, in the event of a family member’s bankruptcy or insolvency).
  • A method of assisting family members with lesser assets as retirement plan.

Let’s discuss some of these in greater detail.

family-trust-income-distribution

The above diagram depicts the way in which the income and the tax structure works in a Family Trust.

The Trust could be used to own assets like the house or shares etc. The income the trust receives should be distributed to family members in the proportion the trustees may decide.

However, it must be stated at the outset, the Trustees need to bear in mind that the key objective of the family trust should not be simply to avoid taxes, otherwise, it would violate the anti-avoidance provisions in Part IVA of ITAA 1936 3

Deciding how to distribute Family Trust Property

In deciding how to distribute the property three key aspects must be considered;

a)  Make sure that all income is distributed: A trust itself does not have to pay income tax on income that is distributed to the beneficiaries, but does have to pay tax on undistributed income. Undistributed income is taxed in the hands of the trustee at the top marginal tax rate plus medicare levy which is 46.5% in the current financial year.

A trust itself does not have to pay income tax on income that is distributed to the beneficiaries, but does have to pay tax on undistributed income.

b) The proportion of distribution should best be considered in line with the receiver’s marginal tax rate – in the previous example the father is the high income earner. Hence, its best to distribute more to the wife who is only working part-time.

c) Do not make distributions to non-family members and try to avoid minors –   It goes without saying a family trust needs to ensure that they satisfy the family trust election (FTE).

Therefore, it can only be distributed to the family members. However, if the family member is a minor, any distributions made to the minor will also be taxed at penalty tax rates and should be avoided.

Distributions received from a trust are not a special form of income, but instead forms part of a beneficiary’s assessable income. If the beneficiary receives income from other sources in addition to distributions from the trust, all of the income will be taxed together.

On a separate note, one must bear in mind that there is capital gains tax on sale of assets by the Trust. However, there is a 50 per cent discount on realised capital gains where trust assets have been held for more than 12 months.

Trust beneficiaries are generally required to submit a tax return, unless they are eligible for an exemption, and the trustees should provide details of the income distributions to beneficiaries to assist with their tax affairs.

Estate Planning Tool

Some wealthy parents who have children who are viewed as spendthrifts or prodigals prefer to leave their assets in family trust rather than bequeathing them by will. They usually prefer to establish a trust upon their death naming a matured friend or relative as the trustee so that they can devise the money to their children based on their needs, rather than allowing the children to reach it as a lump sum.

In the event there is already a family trust in place, the beneficiary must remember that he or she cannot bequeath trust property by his/ her last will. The trust property as we have discussed earlier is not actually of the beneficiary but only of the trustee. What happens to the trust property or the portion of income to the beneficiary upon the death of the beneficiary will only be decided by the Trust Deed for the Family Trust and not the last will of the beneficiary.

Asset Protection

Asset protection becomes distinctly important in two instances i.e bankruptcy and family breakdown.  Yet again, it is important to remember that the Courts have the right to decide otherwise should the Courts feel that the Trust was created simply for the purpose of avoiding an equitable distribution of assets at any time.

a) Bankruptcy 

Assets held in a family trust are held separately from any beneficiary, so they are generally protected from creditors. This can provide asset protection for clients who run their own business, have personal risk exposure through their employment or have given personal guarantees for loans.

However, where assets are transferred into the trust to defeat creditors, these assets may be available to a bankruptcy trustee. Also, despite the general protection of assets from creditors, trustees may still be liable for any actions or personal guarantees.

b) Relationship breakdowns 

If a beneficiary is involved in a relationship breakdown, the trustee could exercise their discretion to direct trust distributions away from this beneficiary to reduce the property and income that would be divisible.

That said, if the trust assets are considered ‘property’ of the marriage, the assets could still be divisible in the event of a relationship breakdown. The Courts look at the substance of each case and try to identify whether the property is actually used as part of the marital asset pool, and if Courts decide so the Trust will act as a protection.4

Retirement Planning Tool

They can also be used to rebalance family wealth between spouses. For example, women often retire with less super than men if they have taken time out of the workforce to raise children. The flexibility of family trusts means they can take a greater share of trust income in retirement to make up for a smaller super balance, in a tax-effective way. 5

Under a family (or discretionary) trust structure, investment assets are held by a trustee. Trustees can pass assets or trust income at their discretion to particular beneficiaries, which could potentially include everyone in a family group.

Conclusion

As we discussed, a family trust is a great tool to have to ensure that wealth is distributed in an efficient and economic manner. However, because of the controversies surrounding some of its aspects its always better to think through all aspects and advantages in greater detail prior to launching into establishing one.  In Part 2 of this Article, we will look at some practical aspects of setting up the trust and possible pitfalls one should avoid.

Download Presentation (PPTX)

  1. Kennon v. Spry 2008 HCA 56, <http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2008/56.html>.
  2. Income Tax Assessment Act 1936, <http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1936240/sch2f.html>.
  3. Part IVA – Income Tax Assessment Act 1936, <http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1936240/index.html>.
  4. Brooks, Alison, Protecting your (farming) property from a relationship breakdown with a Family Trust?, 27th December 2013, <http://www.mondaq.com/australia/x/283116/divorce/Protecting+your+farming+property+from+a+relationship+breakdown+with+a+Family+Trust>.
  5. O’Sullivan, Bernie, Family Trusts – Legal lessons to be learnt from family feuds, 7th December 2012 <http://www.familylawexpress.com.au/family-law-news/wills-probate/family-trusts/family-trusts-legal-lessons-to-be-learnt-from-family-feuds/690/> .

Relocation After Divorce – Factors the Courts Consider

Joe Azzi

Joe Azzi

Online Legal Information Author at Family Law Express
I am a 2nd year student at the University of Sydney studying a combined law degree with mathematics. I am currently balancing my study with tutoring high school children, interning as a solicitor and playing competitive basketball.

Most of all, I am thankful that the flexible discipline of law enables me to be on the frontiers of social, political, economic and international issues where one can play a role in paving the way for a bright future.
Joe Azzi

relocation-after-divorceRelocation is indeed a very important aspect that tends to arise with instances of divorce.

It basically refers to the post separation process whereby a parent decides to move (or relocate) from the region in which he/she previously raised their children with their partner.

As expected, one parent moving a distance away from the other is bound to cause problems – particularly concerning shared custody.

One of the primary reason this is such a disputed issue is that it is not clearly addressed in family law; in other words there is no concrete structure to enforce it by as we see with other issues that are addressed in legislation such as the Family Law Act 1975 (Cwlth).

On what basis do Courts allow relocations (one parent plus children)?

As previously stated, there is no fixed law concerning when to facilitate relocation – instead it comes down to the courts assessment of the facts of the individual scenario.

However, a guiding principle which the court uses is questioning whether or not the move is in the “best interests of a child”.1

This concept particularly stems from S60CC of the Family Law Act and aids in prioritising the wellbeing of the child in decisions made.

In S60CC there are two types of considerations which must be taken into account when regarding the “best interests of a child”; Primary and additional circumstances.

  • Primary considerations are the most important to consider for issues such as relocation. As outlined by the Act there are two primary considerations:
    • “ the benefit to the child of having a meaningful relationship with both of the child‘s parents”.2 Therefore regarding this concept in terms of relocation it is important that moving the child to the desired region does not impede their ability to connect with their other parent. An example of such an case occurred in Sigley & Evor.3 Here a mother wanted to move from southwest Queensland to north Queensland and thus a considerable distance away from the father. However the father initially accepted spending time with the child every second weekend. Thus the court took this into account and determined that the move would not negatively impact the meaningful relationship the child would have with their father as it would still be a practical task to make the visit every second weekend as agreed upon.
    • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.4 This consideration may indeed work for a parent in being granted a right to move their child – particularly if he/she can show that it is best for the child to live at a far distance from their other parent to protect them. This is highly regarded in instances of past abuse toward the child from a parent.

Additional considerations are also taken into account for relocation and revolved around concepts such as the maturity, views, culture and relationships of the child.5 Thus relocation’s consequences must be assessed on the holistic wellbeing of the child – the move must not interfere with their development drastically.

Application of S60CC to recent cases concerning relocation

A major milestone concerning the issue of relocation in Australian family law took place with the case of MRR v GR.6

relocation-considerations-family-law-courts

Factors the Courts Consider in Relocation

In this case the High Court referred to S65DAA(1) in its reasoning which basically covered two key points; whether it is in the child’s best interest to spend equal time with both parents AND whether it is reasonably practicable that they do.7

Obviously the issue of practicality coincides directly with this issue of relocation as a matter of distance is now involved hence interfering with exactly how practical it is that a child should be seeing each parent equally.

Therefore, an expected result from this is that it has now become a tough task to stand in the way of a parent choosing to relocate.

A closer look at relocation

Although some say relocation is akin to the lottery, there are guiding principles, including the status quo, the involvement of the other parent in the parenting, technology and phone contact, the happiness of the moving parent, whether the moving parent has family in the pre-move location, whether they have family and/or a new relationship in the new location, whether there are other children involved in either current or new location, and the financial implications or career implications of a move.

There are a number of points a court considers when regarding relocation particularly the reason for moving; for instance the financial state of a parent.

For instance there may be a scenario where one parent seeks to relocate simply because the area they currently live in has become expensive on them to raise a child. Again the best interests of a child come into play here and what is best for their upbringing takes priority.

Another common reason for relocation is the parent’s mental state; i.e. suffering from depression or otherwise not being happy with their current state of life (they may want to move closer to their family).

Evelyn Bender (Federal Magistrate at the time), in a Judgement handed down in Melbourne raised a particularly notable point in that there is a need by women to “start fresh” after a divorce which would, in most cases, mean moving out of town. A court here would have to consider whether the mental state of a parent would impact the child’s upbringing – or in other words asking; to what extent would the state of mind of the parent affect the child’s development?

An example of such an instance occurred in the case of Hepburn & Noble where the mother was depressed remaining in her home in Wollongong and instead desired to move to Victoria for another relationship.8 The court allowed this and allowed her children to move with her.

Keep in mind that the court also has to determine whether the desired move would substantially impact the other parents’ relationship with the child.

Moreover, the court will also assess the technology available to parents in order to maintain their relationship with the child in event of relocation.

A growing trend within the Family Law Courts has been the willingness to accept the notion that the use of communication technologies can foster and maintain meaningful relationships between parent and child who may live long distances between each other.

In a previous decision, Margaret Cassidy (Federal Magistrate at the time) granted an international relocation request on the basis that Skype was to be used with toddler twins.

In making the Orders, Cassidy referred to a recent study of Skype in the US which suggested that children would be able to “potentially continue to develop a relationship” with the non-custodial parent with the aid of communication technologies like Skype. 9

This is pivotal as some relocations are over vast distances (even between countries) and therefore the court would be very hesitant in disrupting the status quo – or more simply put the continual relationships between the child and both parents IF it already clearly exists.

A notable case is addressing this is U and H [2009] FCWA 128. Here the mother wanted to relocate with her son from Western Australia to the UK to pursue a relationship; the father opposed this despite not living in Western Australia but instead living and working in China. He argued that Western Australia was a very practical location for both himself and his wife to sustain a relationship with the child as opposed to the UK (which was considerably farther away from China).

The boy had a good relationship with both his mother and father who both contributed to his upbringing with the father seeing him on school holidays. However, court allowed the mother to relocate on the basis that preserving a healthy relationship was possible despite the father insisting otherwise.10 Technological means such as telephone, email and Skype were listed by the court as reasonable communication other than the term holidays (which the court also ruled were to be spent to a degree with the father).11

As mentioned, the status quo needs to protected as much as possible; particularly after a divorce as the court seeks to minimise its impact on the child – i.e. operating in a child’s best interests.

Therefore it is common in cases that the court grants relocation, but not promptly. For instance the parent wishing to relocate would have to wait till the child is a certain age to move. A notable case for this is Webber and Pandor where a mother was permitted to relocate to the US from Australia once her youngest child reached five years of age.12 FMCAfam 1059. ]

Related Family Law Judgments

  1. Family Law Act 1975 S60CC.
  2. Family Law Act 1975 S60CC (2)(a). 
  3. 2011 FamCAFC 22.
  4. Family Law Act 1975 S60CC (2)(b).
  5. Family Law Act 1975 S60CC (3).
  6. (2010) 240 CLR 461 S65DAA(1).
  7. Family Law Act 1975.
  8. 2010 FamCAFC 111.
  9.  Skype Contact Sufficient For Non-Custodial Parent, Court Finds <http://www.f4e.com.au/blog/2012/07/05/skype-contact-sufficient-for-non-custodial-parent-court-finds> .
  10. U and H 2009 FCWA 128, 124.
  11. U and H 2009 FCWA 128, 135.
  12. Webber & Pandor [2012

Do Not Resuscitate: Who Decides?

Manisharaj Kaur Pannu

Manisharaj Kaur Pannu

Online Legal Information Author at Family Law Express
I am currently studying a Bachelor of Commerce (Accounting)/Laws degree at the University of Queensland. As my academic, professional and personal experiences have solidified my interest in commercial law, I am keen on pursuing a career in a commercial law firm that values excellence, diversity, and corporate citizenship.On a personal note, I am concerned by the diminishing access to the legal justice system facing our community, and wish to play a part in the efforts of ensuring that all Australians have equal access to the law to protect and enforce their legal rights.
Manisharaj Kaur Pannu

do-not-resuscitateA ‘DNR order’ (Do Not Resuscitate) is a medical order to withhold cardiopulmonary resuscitation (CPR) techniques.

Various terms have been used to describe such an order including ‘No CPR’, NFR (not for resuscitation), NFAR (not for attempted resuscitation), DNAR (do not attempt resuscitation), and AND (allow natural death).

Such an order informs the health care team that in the event of a cardiac arrest, cardiopulmonary resuscitation will not be conducted.1. Measures will then be provided to promote comfort during the dying process.

Given the seriousness of the consequences of a DNR order, various guidelines have been issued in Australia with the aim of supporting health providers, patients and their families during this process.

Most notably, the guidelines emphasise the importance of open and unambiguous communication between the relevant parties. 2

The guidelines stress that a DNR order is to be issued in consultation with the patient, their agent or guardian if applicable, senior medical and nursing staff. 3

In particular, doctors play an important role in the provision or withholding of resuscitation treatment in nearly all situations – where a DNR order exists, doctors play a critical role in assessing its validity; and where a DNR order does not exist, doctors assess whether the patient has capacity to make such decisions, and if not, who is authorised to participate in the making of such decisions on the patient’s behalf.

However, research suggests, somewhat disturbingly, that doctors are not well versed with the laws surrounding DNR orders. 4

This research has revealed that Australian patients are at risk of being killed or saved when they do not want to by doctors who do not understand laws regarding the withholding and withdrawing of life-sustaining medical treatment.

This research was based on a survey of 867 Australian doctors and found ‘‘critical gaps’’ in their legal knowledge that could expose them to criminal charges including murder, manslaughter or assault if they act against a patient’s wishes.

Given the significant consequences of a DNR order and the importance of preserving patients’ rights to individual autonomy and bodily integrity, it is imperative that the medical profession has a sound understanding of this area of law.

Equally important is awareness amongst the public regarding one’s right to make such decisions or appoint substitute decision makers to act on their behalf, and availability of the courts as a forum for dispute resolution should issues surrounding DNR orders arise.

Part 2 and 3 below attempts to shed light on this topic by discussing the laws regulating DNR orders in the various states and territories in Australia.

PART 2 : HOW TO MAKE A DNR REQUEST?

do-not-resuscitate-ordersCommon law and legislation in some states allow for an individual to make an advance health directive, which effectively informs the patient’s health team regarding the care the patient would like in the future should the patient become unable to make medical decisions. It can cover the withholding of CPR.

The common law and various state legislation governing such a directive are discussed in Part 3. In the event that a DNR order does not formally exist, two possible situations arise.

The patient can refuse resuscitation given the patient is competent and has capacity. This common law right to refuse treatment resonates with notions of protecting an individual’s autonomy. This refusal of treatment will be determinative regardless of whether or not the doctor finds CPR could be beneficial.

The second situation arises where the patient is unconscious or otherwise found not to have capacity to make medical decisions. Such situations are often complicated by the role of the medical profession, who at times play a more active role in advocating a DNR request on behalf of the patient.

In such cases, guardianship legislation in each State plays a vital role. Legislation provides that substitute decision-makers will be involved in the decision-making process. A substituted decision maker could have been either formerly appointed by the patient whilst the patent was conscious and had capacity, or by default mechanisms as specified in state legislation. The ability of substitute decision makers to refuse resuscitation on behalf of the patient is discussed in Part 3.

It is also important to note that in all states and territories, dispute resolution mechanisms exist to resolve disputes surrounding a DNR order. The available forums include the respective State tribunals or Supreme Courts that exercise parens patrie jurisdiction. Parens patrie jurisdiction effectively enables the Court to make decisions in relation to adults who lack capacity.

PART 3 : LAWS REGULATING DNR ORDERS

The law in Australia regarding DNR orders is found in both common law and legislation in the various states and territories. While common law remains constant for all states, the legislation varies.

COMMON LAW

Any competent adult can complete an advance directive, which can extend to refusing CPR. 5

For an advance directive to be valid, the adult must be competent and must have acted without undue influence in making the directive.The advance directive will operate when the adult no longer has capacity to make decisions about medical treatment.

However, it will only apply if circumstances arise in which the adult intended the directive to apply. 6

The wishes of the patient will be determinative regardless of whether or not the doctor believes that CPR might be beneficial. Nonetheless, the wishes of an adult or his/her family are not determinative if it involves requesting treatment that the doctor believes is futile.7

LEGISLATION

Australian states and territories have enacted non-uniform legislation governing DNR orders. The proceeding discussion will focus on laws surrounding a person’s rights and rights of those acting on his/her behalf to refuse CPR in Australia. This paper will focus primarily on laws in Victoria, New South Wales and Queensland and offer a brief overview of the laws in the remaining states and territories; South Australia, Western Australian, Tasmania, Australian Capital Territory and Northern Territory.

A. Victoria

The relevant legislation is the Guardianship and Administration Act 1986(Vic) and the Medical Treatment Act 1988(Vic). It is important to note that the legislation does not alter the common law in relation to the provision of treatment that a doctor believes is futile.8

An Adult Can Complete A Refusal Of Treatment Certificate

The Medical Treatment Act 1988 (Vic) 9 states that an adult can complete a refusal of treatment certificate, which extends to refusing CPR. However, an adult’s ability to refuse treatment in such a certificate is limited to refusal that relates to a current condition of the adult.

Whether common law advance directives continue to apply in Victoria remains uncertain. If it does, this would enable an adult to overcome the limitation in the Act by way of an advance directive in common law to withhold CPR, even if such refusal does not relate to a current condition.10

Substitute Decision-Maker

The Act also enables consent to medical treatment to be given by a “person responsible”. 11 “Person responsible” is defined in the Act to include an agent appointed under an enduring power of attorney (medical treatment), a guardian appointed by the Victorian Civil and Administrative Tribunal and an enduring guardian appointed by the adult12

The powers of these individuals in refusing CPR are discussed below.In the absence of the above appointments, the “person responsible” will be the first of the following who is reasonably available and willing and able to make the relevant health care decision; the adult’s spouse or domestic partner;the adult’s primary carer; or the adult’s nearest relative.13

However, it appears that a person responsible does not have power to refuse treatment such as CPR under the Medical Treatment Act 1988 (Vic).

Guardian Appointed By The Victorian Civil And Administrative Tribunal (VCAT)

VCAT may appoint a guardian on behalf of an adult who lacks capacity.14

Ability of the guardian to refuse CPR on behalf of an adult depends on the nature of power conferred. Generally, a plenary guardian and a limited guardian with power to make decisions about medical treatment can refuse CPR but not a limited guardian with power to consent to health care.15

An Adult Can Appoint An Agent

There are two ways that an adult can appoint an agent. Firstly, an adult can appoint an enduring guardian.16. The powers of an enduring guardian will depend on the nature of the appointment similar to powers of a guardian appointed by VCAT discussed above.

Secondly, an agent can be appointed under the Medical Treatment Act 1988(Vic) pursuant to an enduring power of attorney.17. An agent under an enduring power of attorney can refuse CPR on behalf of the patient.

B. New South Wales

The relevant legislation in New South Wales is the Guardianship Act 1987 (NSW). It is important to note that legislation does not alter the common law in relation to the provision of treatment that a doctor believes is futile. 18

An Adult Can Complete An Advance Directive At Common Law

The Guardianship Act 1987 (NSW) does not provide for an adult to make an advance directive. Hence, the common law will continue to apply.19

Substitute Decision-Maker

TheGuardianship Act 1987 (NSW) allows a “person responsible” to give consent to medical treatment on an adult’s behalf.20.

A “person responsible” is defined to include a guardian or enduring guardian appointed by the adult or tribunal. In the absence of such appointments, the substitute decision-maker will be the first of the following; the spouse of the adult, including same-sex or de facto spouse; or a person who has the care of the adult; and a close friend or relative of the adult.21. 
However, it appears that a “person responsible” does not have power to refuse treatment such as CPR.22

Guardian Appointment by Guardianship Tribunal

The Guardianship Tribunal in NSW may appoint a plenary or limited guardian.23 Similar to Victoria, the ability to refuse CPR depends on the nature of power conferred to the guardian.

An Adult Can Appoint An Agent

The Guardianship Act 1987 (NSW) allows an adult to appoint a guardian (known as an enduring guardian).24 The ability to refuse CPR depends on the nature of power conferred.

C.  Queensland

The relevant legislation is the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).

A notable difference between the legislation in Queensland and that of other states is that it requires a medical professional to obtain consent to withhold or withdraw treatment (including CPR) from an adult even if the medical professional considers that treatment to be futile.25

An Adult Can Complete An Advance Health Directive

The Powers of Attorney Act 1998 (Qld) allows an adult to complete an advance health directive, which extends to refusing CPR.26

It is uncertain but likely that Parliament intended the common law surrounding advance directives to continue to apply. The restrictions in Queensland regarding advance health directives are more restrictive compared to the other states. It will only operate if the person has a terminal illness and the person is expected to die within a year, is in a persistent vegetative state, is permanently unconscious, or has an illness or injury of such severity that there is no reasonable prospect that he or she will recover to the extent that life-sustaining measures will not be needed.27

Substitute Decision-Maker

The Powers of Attorney Act 1998 (Qld) allows for certain individuals that are listed in the Act to act as a  ‘statutory health attorney’ of the adult.28

Their powers extend to refusing CPR. A statutory health attorney is the first person from the following list who is readily available and culturally appropriate to exercise power for health matters; a spouse of the adult; adult’s carer; and a close friend or relation of the adult.29

If there is none who is readily available and culturally appropriate from the list above, the Adult Guardian is the adult’s statutory health attorney.[30. Powers of Attorney Act 1998 (Qld) s 63]. The Adult Guardian is a statutory official.

Nonetheless, decisions made by a ‘statutory health attorney’ to refuse CPR will not operate unless the doctor believes the provision of treatment (including CPR) is inconsistent with good medical practice.30

Guardian Appointed By Queensland Civil And Administrative Tribunal (QCAT)

QCAT is empowered to appoint a guardian on behalf of an adult who lacks capacity.31 Similar to Victoria and NSW, the ability of the guardian to refuse CPR on behalf of an adult depends on the nature of powers conferred.

An Adult Can Appoint An Agent

The Powers of Attorney Act 1998 (Qld) allows an adult to appoint an ‘enduring power of attorney’ (EPA) whose powers can extend to refusing CPR.32 However, this power is limited.  It will only operate if the doctor believes that the provision of treatment (including CPR) is inconsistent with good medical practice.33

D. Overview of Remaining States and Territories

South Australia

The relevant legislation in SA is the Consent to Medical Treatment and Palliative Care Act 1995(SA) and Guardianship and Administration Act 1993(SA).TheConsent to Medical Treatment and Palliative Care Act 1995(SA) allows an adult to make an advance care directive, which covers the withholding of CPR. A direction can only operate if the person is in the terminal phase of a terminal illness or in a persistent vegetative state.Similar to the states above, The Guardianship and Administration Act 1993 (SA) provides for the appointment of a guardian by Guardianship Board of South Australia, enduring guardian by an adult, and substitute decision-maker.

Western Australia

The relevant legislation in WA is the Guardianship And Administration Act 1990 (WA). The Act allows an adult to make an advance health directive, which covers the withholding of CPR.Similar to the states above, the Act provides for the appointment of a guardian by the State Administrative Tribunal, enduring powers of attorney or enduring guardian by an adult, and substitute decision-maker.

Tasmania

Advance directives are regulated solely by common law.  Similar to the states above, the Guardianship and Administration Act 1995 (Tas) provides for the appointment of a guardian by Guardianship and Administration Board, enduring guardian by an adult, and substitute decision-maker.

Northern Territory

The relevant legislation in NT is the Advance Personal Planning Act 2013 (NT). The Act allows an adult to make an advance care plan, which could cover the withholding of CPR.

Australian Capital Territory

The relevant legislation in ACT is the Medical Treatment (Health Directions) Act 2006(ACT). It allows an adult to make a direction to refuse, or withdraw CPR.

  1. Jayne Hewitt, ‘Do not resuscitate” orders in Queensland; examining the need to obtain consent,’ (2011) 31 Queensland Lawyer 195
  2. Postgraduate Medical Council of Victoria Inc, Working In Victoria’s Healthcare System: An Orientation Manual For International Medical Graduates, 2013
  3. Postgraduate Medical Council of Victoria Inc, Working In Victoria’s Healthcare System: An Orientation Manual For International Medical Graduates, 2013
  4. Doctors need to swot up on end-of-life laws: research, <http://www.theleader.com.au/story/2480017/doctors-need-to-swot-up-on-end-of-life-laws-research/?cs=3943>
  5. Willmott, Lindy, White, Benjamin P., & Mathews, Benjamin P., ‘Law autonomy and advance directives,’ (2010) 18 Journal of Law and Medicine 366
  6. Willmott, Lindy, White, Benjamin P., & Mathews, Benjamin P., ‘Law autonomy and advance directives,’ (2010) 18 Journal of Law and Medicine 366.
  7. Willmott, Lindy, White, Benjamin P., & Mathews, Benjamin P., ‘Law autonomy and advance directives,’ (2010)  18 Journal of Law and Medicine 366
  8. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to with- hold or withdraw life-sustaining treatment : part 3 (Victoria),’ (2011) 18(4)  Journal of Law and Medicine 773
  9. Medical Treatment Act 1988 (Vic) s 5
  10. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to with- hold or withdraw life-sustaining treatment: part 3 (Victoria),’ (2011) 18(4) Journal of Law and Medicine 773
  11. Guardianship and Administration Act 1986 (Vic) s 39
  12. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to with- hold or withdraw life-sustaining treatment: part 3 (Victoria),’ (2011) 18(4) Journal of Law and Medicine 773
  13. Guardianship and Administration Act 1986 (Vic) s 37
  14. Guardianship and Administration Act 1986 (Vic) s 22(1)
  15. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to with-hold or withdraw life-sustaining treatment : part 3 (Victoria),’ (2011) 18(4)  Journal of Law and Medicine 773
  16. Guardianship and Administration Act 1986 (Vic) s 35A
  17. Medical Treatment Act 1988 (Vic) s 5A
  18. White, Benjamin P., Willmott, Lindy, Trowse, Pip, Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 1 (New South Wales)’ (2011) 18(3) Journal of Law and Medicine 498
  19. White, Benjamin P., Willmott, Lindy, Trowse, Pip, Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 1 (New South Wales)’ (2011) 18(3) Journal of Law and Medicine 498
  20. Guardianship Act 1987 (NSW) s 36
  21. Guardianship Act 1987 (NSW) s 36
  22. White, Benjamin P., Willmott, Lindy, Trowse, Pip, Parker, Malcolm, & Cartwright, Colleen, ‘The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 1 (New South Wales)’ (2011) 18(3)  Journal of Law and Medicine 498
  23. Guardianship Act 1987 (NSW) s 15
  24. Guardianship Act 1987 (NSW) s 6
  25. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen. ‘The legal role of medical professionals in decisions to with- hold or withdraw life-sustaining treatment: Part 2 (Queensland),’ (2011) 18(3) Journal of Law and Medicine 523
  26. Powers of Attorney Act 1998 (Qld) s 42
  27. Powers of Attorney Act 1998 (Qld) s 36
  28. Powers of Attorney Act 1998 (Qld) s 62

  29. Powers of Attorney Act 1998 (Qld) s 63
  30. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen. ‘The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 2 (Queensland),’ (2011) 18(3) Journal of Law and Medicine 523
  31. Guardianship and Administration Act 2000 (Qld) s 12
  32. Powers of Attorney Act 1998 (Qld) s 35(1)(c)
  33. Willmott, Lindy, White, Benjamin P., Parker, Malcolm, & Cartwright, Colleen. ‘The legal role of medical professionals in decisions to with- hold or withdraw life-sustaining treatment: Part 2 (Queensland),’ (2011) 18(3) Journal of Law and Medicine 523

Everything you need to know about Child Contact Centres

Tony Ko

Tony Ko

Online Legal Information Author at Family Law Express
Tony is currently studying law and business at the University of Western Sydney. He has a keen interest in civil liability and hopes to work in the area upon graduation.
Tony Ko

child-contact-centresA child contact centre is a place co-parents can bring their children for change-overs or visitation.

It serves as a neutral and safe environment for separated families.

Child contact centres provide rooms with toys and games for visitation. They also have trained staff for the supervision of visitation.

Staff can also help facilitate change-overs if needed.

If the situation requires, staff can completely handle the change-over process, removing the need for co-parents to meet.

Who can use a child contact centre?

A court may sometimes order change-overs and visitations to be supervised. This could be due to a history of violence between separated families. In cases such as these a court will usually order visitation and change-overs to be supervised by a child contact centre.

Co-parents can also use child contact centres voluntarily, without a court order.

Co-parents can use child contact centres regardless of whether they have been married or not.

How long can you use a child contact centre for?

If a court makes an order for supervised change-overs or visitation then you must do so for the specified time period. If you are using the services voluntarily, the centre will advise you on whether they think the relationship between parties has improved enough to not require the use of a child contact centre.

You should also note that there may be a significant waiting period before services become available as demand is fairly high.

Where can you find a child contact centre?

Child contact centres are run by a number of organisations. Many of them are government funded and can subsidise fees 1.

Child contact centres can be found in Bankstown, Blacktown, Fairfield, Liverpool, Macquarie, Newcastle, Penrith, Sydney and other major city centres. It may be useful to contact other centres if your first choice has a long waiting period. 2.

Fees for child contact centres

Child contact centre fees are usually split between co-parents unless a court has ordered that one party pay all the fees. Some child contact centres charge as little as $10 per hour to use their facilities 3.

Other centres will charge around $15 an hour for supervised visits or $10 per change-over 4.

Please be aware that some services require additional fees for initial assessment. If you do seek the services of a government funded child contact centre and you are suffering financial trouble then you may be eligible for subsidised fees.

It is advised that you speak with your service about your financial situation during your initial consultation.

Benefits of using a child contact centre

Using a child contact centre can benefit all parties involved. For the co-parents, it can help to avoid arguments during the change-over process as it is supervised and the co-parents do not necessarily need to make contact with each other.

This is particularly helpful if the co-parents are not on speaking terms or if there is a history of domestic violence.

For the child, it allows a peaceful transition in a situation that can be daunting.

The toys and games provided create a fun environment for the child to enjoy their visitation and their safety is protected by qualified staff. The child’s well-being should be the primary concern and a child contact centre can provide the services to achieve this.

  1. Family Relationship Centres,  http://www.familyrelationships.gov.au.
  2. Catholic Care, http://www.catholiccare.org/contact-us; Axia Solutions, http://www.axiasolutions.com.au/Contactcentre.html; Macquarie Legal, http://www.macquarielegal.org.au/CWCS.html; Relationships Australia, http://www.nsw.relationships.com.au/contact-us/ccs.aspx.
  3. Axia Solutions, http://www.axiasolutions.com.au/Contactcentre.html.
  4. Sydney CCS fees policy,  http://www.catholiccare.org/families/post-separation/sydney-childrens-contact-service.

How do Psychologists view the Legal Definition of Family Violence?

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

 

This is one response from the Expert Interview Series: Dr. Travis Gee. Refer to the table of contents for the whole series of questions posed to Psychologist Dr Travis Gee, on the topic of how Family Reports and the Psychology Industry in Family Law

2. Family violence is defined in the Family Law Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”- how does the psychology industry view such definition? Is this a conventional explanation of family violence that must be applied in a family report, if applicable in the circumstances of the case?

dv-non-sexist-violenceI can’t speak for the whole industry, as the industry can split along political lines when it comes to this topic. From a scientist/practitioner point of view, it is important that there be clear definitions of things, and the definition above has a problem in the part about “causing the family member to be fearful.”

Because fear is an internal subjective state not readily tested, and readily feigned, it becomes possible to use just about anything to raise a claim of family violence, provided the claimant states that they are afraid.

One major issue for men so accused is that it shifts the locus of the crime from the actions of the alleged perpetrator to the internal state of the putative victim.

It removes a barrier to criminal prosecution by bringing a civil standard of proof into what historically has been a criminal domain, allowing what is effectively a person-specific law to be written that can later be enforced with criminal sanctions, based on a burden of proof that is far below the usual criminal standard.

Furthermore, because stereotypically men should not be afraid of women, it makes the bar much higher for them to establish the criterion, than it is for women – so long as stereotypes are not weeded out as sources of ‘information’.

The net effect of such allegations is that a report writer is in the position of having to determine the extent to which a person really is afraid, or whether false claims of fear (and other things) are being used to gain leverage in the family law proceedings.

As the usual process is for the report to be done prior to determination of the facts of the matter,  this creates a contradictory situation where the reporter skates around the edge of ‘facts’ without making any determinations, as by definition this is up to the judge. This is a procedural issue that I will come back to later.

For the moment, it is worth noting that from scientist-practitioner point of view, stereotypes about violence have found their way into reports where there is a male/perpetrator female/victim slant that is inconsistent with the science on the topic, which suggests that while this slant is a majority of cases, the majority is closer to 50% than to 100%.

This is a cultural artefact of expecting men simply to ‘suck it up’ when a woman throws things at him, for example. It is discussed in detail in a 2007 article1 that reviews findings that go back to the 1975 US National Survey on Family Violence that found “female perpetrated abuse in intimate relationships is at least as common as male abuse, often extends to the same degree of severity, can result in serious negative outcomes for male and female victims, and seems to reflect a common set of background causes.”

Unfortunately the view that domestic violence is something that men do to women and not the reverse is still pushed in the more feminist corners of the tertiary education which many report writers receive, and getting past this bias to understanding what is going on from an evidence-based perspective can be challenging, requiring a significant degree of self-reflection that is not always apparent.

Despite mounting evidence that “empirical research suggests that domestic violence has been falsely framed as exclusively male initiated violence,”2 documents that influence policy in Australia tend to follow the line taken by DSS researchers  3who state that “Male perpetrators of domestic violence or sexual assault against men and female perpetrators of either offence against men have not been considered in this literature review. “

As with Oedipus, who never saw his mother again, the reasoning seems to be that if one blinds oneself to the problem, it ceases to exist.

 

  1. Carney, MA., Buttell, FB, (2007). Women who perpetrate intimate partner violence: A review of the literature with recommendations for treatment. Aggression and Violent Behavior 12 (2007) 108–115.
  2. Carney, M., Buttell, F. and Dutton, D. (2007). Women who perpetrate intimate partner violence: A review of the literature with recommendations for treatment. Aggression and Violent Behavior, 12(1) pp. 108-115.
  3. Greely, C. and Wallace, A. (2013). Literature review on domestic violence perpetrators. Canberra: Department of Social Services. Online document at http://www.dss.gov.au/sites/default/files/documents/09_2013/literature_review_on_domestic_violence_perpetrators.pdf.

How do Psychologists reconcile Shared Parenting & the potential Risks of Family Violence?

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

This is one response from the Expert Interview Series: Dr. Travis Gee. Refer to the table of contents for the whole series of questions posed to Psychologist Dr Travis Gee, on the topic of how Family Reports and the Psychology Industry in Family Law

3. There are many cases that showed violence and abuse victims, mostly kids, face greater risks of continued violence and abuse when the 50/50 share care is required. How would the psychology industry go about solving this problem and provide a fair family report? 

controversial-psychologist-penelope-leach

Child Psychologist Penelope Leach

First, you are assuming that there is “a problem” based on a few cases, which is not how any science-based industry goes about things.

It is slightly less than argument from a vacuum, and goes nowhere towards producing fair reports.  Researchers and scientifically-oriented practitioners draw conclusions based on statistical realities that have been investigated impartially.

For instance a review by Joan B. Kelly 1 reflects the growing recognition of the importance of fathers in a child’s life, and the need for a range of options that will work according to the individual needs of the parents and children.

More broadly, there is a wide range of social ills that flow from what one American team of writers call “a de facto social experiment in which the social father is increasingly viewed as optional or supernumerary,”2  ills that would not be pervasive at an aggregate level unless there were severe deleterious effects at the level of the individual child, in both the short and long term.

The Ben-Ami and Baker article noted above on alienated children and their poorer outcomes underscores this point.

To the extent that very young children spending a preponderance of time with their mothers may have some benefits, developmentally-appropriate plans based on sound research need to be constructed so as to have flexibility to be reviewed periodically.

Such reviews must be careful to disregard the spoutings of psychologists who make claims that go far beyond their (or anyone else’s) data, such as the recent outrageous statements of British researcher Penelope Leach, who went so far as to suggest that sleepovers at the father’s place could “cause brain damage.”3

That is not to say that there are no risks to be considered, rather that they must be considered on the basis of truly impartial research.

An AIFS study found mothers as, or more likely than fathers to emotionally or physically abuse children, and decidedly more likely to be found guilty of neglect while at the same time showing fathers not to be the primary perpetrators of sexual abuse. 4

Once again, statistics fly in the face of those who propose mothers to somehow be ‘naturally’ the better parent and fathers some kind of  threat (particularly sexual).

However, the odds remain heavily stacked against fathers in all Family Law Courts and Magistrates’ courts. One need look no further than the AIFS review of the 2006 Family Law changes 5 to see that under all circumstances, the odds are weighted rather heavily in favour of the mother in all judicial determinations.

This seems to be mirrored in consent cases it seems that litigating fathers who fought hard for the children end up simply giving up.

  1. Kelly, JB (2006). Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research. Family Process, 46(1), 35-52.
  2. Mackey, WC, and Immerman, RS (2007).

    Fatherlessness by divorce contrasted to fatherlessness by non-marital births: A distinction with a difference for the community. J. Divorce & Remarriage, 47 (1/2),111-134.

  3. Sydney Morning Herald (2014). Child psychologist Penelope Leach says sleepovers at dad’s ‘may damage brain’ 3 MONTHS AGO JUNE 18, 2014.
  4. Lamont, A. (2011). Who abuses children? Australian Institute of Family Studies, February 2011, 7 pp. ISSN 1448-9112 (Online:  http://www.aifs.gov.au/nch/pubs/sheets/rs7/rs7.html).
  5. Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., and Qu, L. (2009).  Evaluation of the 2006 family law reforms. Melbourne: AIFS. 

Do Psychologists apply the same Shared Parenting principles to Children of Short-Lived Relationships?

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

 

This is one response from the Expert Interview Series: Dr. Travis Gee. Refer to the table of contents for the whole series of questions posed to Psychologist Dr Travis Gee, on the topic of how Family Reports and the Psychology Industry in Family Law

7. In a context of a short-term relationship between the parents, how should custody of a child be assessed and how should the “best interest of a child” be defined and applied in this specific context? For a child’s well being, isn’t it necessary for a child to be able to build relationship to both his/her parents? 

unmarried-fathersAs a general rule, yes, the child should have relationships and spend time with both parents, irrespective of age.

There are natural exceptions to the rule, substantiated violence and abuse with a likelihood that it will continue, or cases of severe parental alienation, where awarding custody immediately to the targeted parent is one recommended therapeutic approach.

However, as it stands there are two issues with enforcement of orders. On the one hand, many fathers are outraged at the way that mothers can ignore contact orders, with little or no consequence.

On the other hand, there is no enforceability about non-custodial parents spending time with children if they do not wish to. The solution to the former is a simple matter of empowering police to enforce those orders when requested, and heavier consequences for contraventions. The solution to the latter is far more obscure.

Current stereotypes might have us believe that these are fathers, and that they are in the majority, however, data contradict that idea.

The 2009 Family Law evaluation study by the AIFS1 found that only 17% of fathers of children under two, and 13% of fathers of older teens, were not in contact with their children, with the number dropping to 5% between those extremes.

And we cannot forget that these are family law outcomes, where typically the father fights to have access to his children, and would not voluntarily walk away (barring unusual circumstances such as the case of the doubly-conflicted ICL above).

Statistically, the situations where the father wishes to have no contact are more likely to arise in undisputed settings, rather than family law settings. Statistics on these cases are scarce and unreliable, so the scientist-practitioner has little to go on.

A father’s only contact may be via the child support system, which does not typically gather much data about anything other than his income and his ‘early termination’, and that is in situations where he is in fact aware that he has a child.

Unfortunately, it is a fairly unstudied area, however, with rising rates of out-of-wedlock children and mothers increasingly having children to subsequent partners, 2 it is reasonable to expect this number to grow.

This will be especially true if current calls for child support payments to be made by the government irrespective of payment by the paying parent change legislation, particularly where there is no recourse to reimbursement in one of the growing number of cases of paternity fraud.

  1. Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Lixia, Q., et al. (2009). Evaluation of the 2006 family law reforms. Australian Institute for Family Studies.
  2. Thomson, E., Lappegård , T., Carlson, M., Evans, A. & Gray, E. (2014). Childbearing Across Partnerships in Australia,the United States, Norway, and Sweden. Demography, 51, 485–508.